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2003-230S:\Our Documents\0rdinances\03\Airport Lease Amendment and Partial Assignment-Ezell-Dalton.doc ORDINANCE NO. ~t OO3 -a M AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AMENDMENT TO AN AIRPORT LEASE BETWEEN THE CITY OF DENTON AND EZELL AVIATION, INCORPORATED AND A PARTIAL ASSIGNMENT TO GEORGE DALTON; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Council hereby approves the Second Amendment to Airport Lease Agreement between the City of Denton and Ezell Aviation, Incorporated and a partial assignment to George Dalton in substantially the form of the documents which are attached hereto and made a part of this ordinance for all purposes. SECTION 2. The City Manager, or his designee, is authorized to sign said documents on behalf of the City of Denton. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 42 ~dday of 2003. C~ &,L- EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: SECOND AMENDMENT TO AIRPORT LEASE AGREEMENT COMMERCIAL/FBO This Second Amendment to Airport Lease Agreement ("Second Amendment") is made and entered by and between the City of Denton, Texas ("Lessor") and Ezell Aviation, Incorporated ("Lessee") as of the Effective Date as set forth below. WHEREAS, the Lessor and Lessee desire to amend that certain Airport Lease Agreement dated May 6, 1997 approved by Ordinance No. 97-132 as amended by that certain First Amendment to Airport Lease Agreement dated December 8, 1998, approved by Ordinance No. 98-431 (collectively called the "Airport Lease"); and WHEREAS, the Airport Advisory Board for the City of Denton has recommended approval of this Second Amendment; NOW, THEREFORE, in consideration of the mutual covenants, the parties agree to the following amendments to the Airport Lease: 1. Article I of the Airport Lease is amended to delete from the leased premises that portion of Tract C particularly shown on Exhibit D attached hereto and made a part hereof by reference (the "Deleted Leased Premises") so that the leased premises under the Airport Lease shall exclude the Deleted Leased Premises. Lessee hereby releases and quitclaims to Lessor all of Lessee's right, title and interest it has in and to the Deleted Leased Premises. Tract A and Tract B are redefined and described as shown on Exhibit D. A legal description of the redefined Tracts A and B will be provided by Lessee to Lessor no later than August 5, 2003 which will be made a part of Exhibit D. 2. Section B of Article I of the Airport Lease is amended to make it clear that a restaurant is a permitted use. 3. Subsection B. Lf of Article II of the Airport Lease is deleted and replaced with the following: £ Construction of 14,400 square feet of hangar space in one or more hangars on Tract B shall be completed on or before March 1, 2004. No individual hangar shall be less than 3,600 square feet. Each hangar shall have a door with a minimum width of 50 feet. The building permit for the initial hangar must be obtained on or before September 2, 2003 ("First Building Permit Issuance Covenant"). Actual construction on the initial hangar shall begin on or before October 1, 2003 ("Commencement of Construction Covenant"). Seventy-Five percent (75%) of the entire 14,400 square feet of hangar space shall be under construction on or before December 31, 2003 ("75% Construction Covenant"). One hundred percent (100%) of the entire 14,400 square feet of hangar space shall be completed on or before March 1, 2004 ("Construction Completion Covenant"). 4. Section IX of the Airport Lease is amended to add a Subsection C. to read as follows: C. Cancellation by Lessor-Failure to Construct Hangar Space Improvements In the event Lessee fails to fulfill the First Building Permit Issuance Covenant, the Commencement of Construction Covenant, the 75% Construction Covenant, or the Construction Completion Covenant as specified in Subsection B.l.f of Article II, then in any such instance Lessor may terminate this Airport Lease and all of Lessee's rights thereunder by a written notice to Lessee without advance notice. In such event, Lessee shall immediately vacate the leased premises without the necessity of eviction proceedings. In such event, the provisions of Subsection D.4 of Article R as amended by this Second Amendment will apply to the Lessor's right to purchase all buildings, structures and improvements on the leased premises. 5. Subsection D.3 of Article II is changed so that the building life on all buildings in the Airport Lease including revised Tract B is 30 years. Subsection DA of Article II is hereby amended to change "one forty-fifth (1/45) for new improvements constructed on FBO Tracts A,B, and C" to now read "one thirtieth (1/30) for new improvements constructed on FBO Tracts A,B, and C". 6. Subsection E. of Article XV is deleted and replace with the following: E. Notice. Any notice given by one party to another in connection with this Agreement shall be in writing shall be sent by certified mail, return receipt requested, postage prepaid at the addresses below, or via facsimile to the fax nos. below: If to Lessor: City Manager City of Denton City Hall 215 E. McKinney Denton, Texas 76201 Fax No. 940.349.8596 2. If to Lessee: Nelson Ezell President Ezell Aviation, Incorporated P.O. Box 1793 Page 2 Breckenridge, Texas 76424 7. Subsection B. of Article III is amended to add Tract B and that portion of Tract C not a part of the Deleted Leased Premises (the "Redefined Tract B" as shown on Exhibit "D") to be treated as a commercial tract and not an FBO tract and the same as Tract D for rental purposes and all other purposes under the Airport Lease, effective as of the Effective Date of this Second Amendment. This Second Amendment is intended to amend the provisions of the Airport Lease only to the extent set forth herein. All other terms, conditions and covenants contained in the Airport Lease shall remain in full force and effect. Signed by the parties hereto to be effective as of June 1, 2003 (the "Effective Date") CITY OF DENTON, TEXAS BY: 4dh~ L, CGt - icha A. Conduff City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: (1W, h4awl ()jf/, APPROVED AS TO FORM: HERBERT L. PR UTY, CITY ATTORNEY BY: EZELL AVIATION, INCORPORATED BY: N son Ezell President Page 3 APPROVED AS TO FORM L Co Lst k,-i f M11 off ey ACKNOWLEDGMENT STATE OF TEXAS } } COUNTY OF STEPHENS } This instrument was acknowledged before me on the -zk day of 2003 by Nelson Ezell, President of Ezell Aviatio ,Incorporated, on beh f of said corporation. ppp11p""% BONNIE MARSH NOTARY PNBLIC ~1J,n(,(rI y STATE OF TEXAS N t Public, t4 Exhibit D N -7 30 -r r N * Is a~ Commercial Tract p